certain Lands c. promised to pay to the Plaintiff 15 li. annuatim pro quolibet anno during four years if J. S. should live so long and after the first year the Plaintiff brought his Action and upon non Assumpsit had a Verdict and Iudgment though it was not averred that J. S. lived so long for the Action lieth after the first year Si being a limitation subsequent Shaw versus Huntly Trin. 21 Car. Rot. 321. IN Debt Debt against an Executor upon plene administravit pleaded and Issue thereupon the Iury found that the Testator devised that his Executors should sell certain Lands Mich. 23 Car. Banco Regis Blackwell versus Ashton Hil. 22 Car. Rot. 636. A Scire facias Scire facias was brought against three Bailees upon a Recognizance acknowledged by them and the principal joyntly and severally and upon a demurrer the Writ abated by good advisement because this being founded upon a Record the Pl. ought to shew forth the cause of the variance from the Record as that one was dead but if an Action be brought upon Bond in the like case there the Defendants ought to shew that it was made by them and others in full life not named in the Writ because the Court shall not intend that the Bond was sealed and delivered by all that are named in it and therefore the Defendants cannot demur upon it though it be entred in haec verba And so it is if an action be brought upon a Recognizance taken before the Mayor and Recorder c. by the Statute of 23 H. 8. because there the parties must seal and so hath it been adjudged Dyer 227. e. 28 H. 6. 3. c. 36 H. 6. 16. Fyner versus Jeffrys Trin. 23 Car. Rot. 1599. IN an Assumpsit Assumpsit the Plaintiff declares That where one Richard Brand had assaulted and beaten the Plaintiff c. the Defendant in consideration that the Plaintiff would not prosecute the said R. B. c. promised to pay him so much as the Plaintiff was damnified and averrs that he hath not nor yet doth prosecute the said R. B. c. And that he was damnified by reason of the same Battery in 30 li. which the Defendant though such a time and place required hath not paid and upon non Assumpsit and a Verdict for the Plaintiff it was moved that the Plaintiff hath not given the Defendant notice of what he was damnified in but yet the Plaintiff had his Iudgment because the Defendant hath taken upon him to pay the damage that the Plaintiff susteined which when the Plaintiff ascertains to him and requires him to pay the Defendant at his peril is bound to pay if in truth he were so much damnified Lodge versus Weeden Hil. 22 Car. Rot. 146. IN an Action upon the Case for killing of Cattel infected de quodam morbo mortali Angl. the Murrain and throwing their Entrails into the Plaintiff's Field per quod diversa averia of the Plaintiff's interierunt after a Verdict for the Plaintiff upon not guilty pleaded it was moved to be too uncertain because it doth not appear what nor how many Beasts perished but yet Iudgment was given for the Plaintiff because there néeds not such certainty in an Action upon the Case which is not brought for the Beasts themselves or the value of them but for damages sustained by their death through the Defendants means Sims versus Gregory and others Trin. 23 Car. or Pasch 22 Car. Rot. 247. IN an Action of Trespass Trespass upon the Statute of Monopolies made anno 21 Jac. the Plaintiff sets forth the Statute and that 13. Jul. 14 Car. proclamation was made by the King concerning Wines by colour whereof the Defendants procured the Plaintiff to be imprisoned and 200 Pipes of his Wine to be detained till he made Fine for them and that afterward viz. 15 Jul. 14 Car. another Proclamation was made colore hujus Proclamationis postea scil 7. Jan. 20 Car. the Defendants caused the said Plaintiff to be taken and imprisoned and that the Defendants not fearing the said Stat. postea scil 14. Jul. ann 20. supradicto tantas minas de imprisonamento corporis ipsius T. Sims adtunc ibidem intulerunt quod idem Th. Sims per longum tempus scil à praed ' 14. die Jul. anno 20. supradict usque diem impetrationis hujus billae scil 14. diem Jul. 21 Car. circa negotia sua necessaria palam intendere non audebat c. contra pacem c. contra formam Statuti c. The Defendant pleaded not guilty within six years and it was found for the Plaintiff And it was moved in an arrest of Iudgment that the Declaration was repugnant for the Imprisonment is laid to be 7. Jan. 20 Car. and then follows that the Defendants postea scil 14. Jul. 20 Car. tantas minas c. which is before the Imprisonment for the King began his Reign 27. Martii and the Iury have given damages with relation to the whole time whereas the Declaration is nought as to a great part of it And the Case being much debated it was agreed 1. That the Plaintiff in his Declaration need not answer the order of time wherein the Trespasses were done but may alledge that which was done 7. Jan. before that which was done 14. Jul. But yet 2. It was resolved that postea in the latter place must refer to the time immediately precedent and cannot leap over that and refer to the time wherein the Proclamation was made 3. It was resolved that the word postea in this case could not be void and the time brought in by the Scilicet stand absolutely because the word Scilicet is but explanatory and for instance and cannot contradict any thing that is precedent Hob. 172. But if the word Scilicet had been out and the time brought in by it had been alledged substantively then the word Postea would have been void being repugnant 4. It was resolved that the time brought in by the Scilicet was repugnant and void and the Declaration stands as if no such time had been alledged and then it runs thus That the Defendant's Postea tantas minas c. intulerunt quod idem J. S. per longum tempus circa negotia sua necessaria palam intendere non audebat and though this be uncertain for that no time is alledged yet it being not the substance of the Action but only for aggravation of damages and in as much as evidence could not be given of any threats after the reste of the Bill or damage by reason of them thefore being after a Verdict it was resolved to be good enough Lastly It was resolved That it shall not be intended in this case that the Iury have given damages with respect to the time brought in by the last Scilicet after per longum tempus which over-reaches the time that the threats were made the time brought in by the first Scilicet
torn in pieces with Rats if a Stranger by laying the pieces together could make the devise appear good if gnawn before the death against the Will IN an Eject ' firm ' upon a tryal at the Bar the Evidence was that one Warner by his Will in writing devised the Lands in question to Henry Etheringham and the Heirs males of his body and bailed the Writing to the Scrivener to kéep and four years after died and about a fortnight after his death this Writing was found in the Scrivener's Study gnawn all to pieces with Rats yet he with the help of the pieces and of his memory and other Witnesses caused it to be proved in the Ecclesiastical Court and now the Court demanded of the Witnesses whether a Stranger that knew not the Contents of the Will before by joyning of the pieces together could tell that the devise of the Lands in question was to Etheringham and the Heirs males of his body for they did agrée that if this clause could be made out though by joyning of the pieces it were a good Will for all that But the Witnesses said that a Stranger could not make out that clause Whereupon the Court directed the Iury that if they found that the Will was gnawn before the death of the Devisor then 't was for the Plaintiff if after for the Defendant and the Iury found for the Defendant in favour of the Will Markham versus Adamson Words I accuse you to be a Witch c. IN Slander The Defendant said to the Plaintiff I accuse you to be a Witch and the next day said I desire to have you searched the Plaintiff asked why would you have me searched the Defendant said because I accuse you to be a Witch and after a Verdict for the Plaintiff judgment was given against him because the words did not import an Accusation of any offence within the Statute But it was agréed that if the Plaintiff had béen accused of bewitching a Man or a Beast though this were not Felony by the Statute the Action would have lain and so hath it béen adjudged Newman versus Zachary ACtion sur le Case The Plaintiff declares that the Defendant was his Shepherd and that two of his Sheep did estray Action sur le Case for his false practice creating trouble c. to the Plaintiff one of which being found again the Defendant affirmed to be the Plaintiff's whereupon the Plaintiff paid for the feeding of it and caused it to be shorn and marked with his own Mark and yet afterwards the Defendant malitiose machinans to disgrace the Plaintiff and knowing the said Sheep to be the Plaintiffs falsò fraudulenter affirmavit to the Bailiff of the Manor that had waifs and strays belonging to it that this Shéep was an Estray whereupon the Bailiff seised it to his damage c. And after a Verdict for the Plaintiff Latch moved that there was no cause of Action for there is no breach of trust in the Defendant as Shepherd and his words cannot endamage the Plaintiff for he shall have his remedy against the Bailiff of the Manor that seised the Shéep wrongfully But it was adjudged that the Action would lie because the Defendant by his false practice hath created a trouble disgrace and damage to the Plaintiff and though the Plaintiff have cause of Action against the Bailiff Upon slandering a Title though the party hath remedy vers Trespasser yet Action lies against him that caused the disturbance yet this will not take off his Action against the Defendant in respect of the trouble and charge that he must undergoe in the recovery against the Bailiff and Hales said that if one slander my Title whereby I am wrongfully disturbed in my Possession though I have remedy against the Trespasser I shall have an Action against him that caused the disturbance Sir Thomas Bowe 's Case If Lessee for years hold over and pay his Rent quarterly that makes a Tenant at will 21 H. 7. 38 E. 14 H. 8. 11. f. Dyer 62 a. 173. IN Debt for Rent upon a Lease at Will of Houses in London upon a Trial at the Bar touching the Title of Sir T. Bowes it was agréed and given in charge to the Iury by Roll that if Tenant for years holds over his term and continue to pay his Rent quarterly as before that this payment and acceptance of the Rent amounts to a Lease at Will Ten. at will begins a new Quarter over shall pay the Rent Inst 56. 69. 13 H. 8. 16. a. Kel 65. 6. 2. That if Tenant at Will rendring Rent quarterly begins a new Quarter and voluntarily determines the Will before the Quarter ended yet he shall pay the Rent for that Quarter Evely versus Livermore H. 17 Car. Rot. 1409. Stat. 3 Jac. that does not extend to a special Action upon his promise and to give a Ticket of his charges IN an Assumpsit the Plaintiff declares that the Defendant reteined him as his Attorney to follow his Causes in the King's Bench Chancery and Court of Request and gave him so much in hand to defray his charges and promised to pay him what more he should lay out and alledges that he layed out 10 li. more then he received for Fees of Counsel and other charges in the Defendants Suits which the Defendant hath not paid c. The Defendant pleads the Statute 3 Jac. 7. that the Plaintiff did not give a Ticket to him of his charges c. and after demurrer it was adjudged for the Plaintiff for the Statute doth not extend to a special Action upon a promise and so it was adjudged in Dobbins his Case Farrer versus Bates P. 22 Car. Rot. Arbitrement Debt and other Controversieslie in Arbitrement though Debt solely does not IN an Indebitatus Assumpsit for 9 li. upon an Insimul computaverunt the Defendant pleaded a submission of all actions and controversies to Arbitrement and that the Arbitrators awarded that the Defendant should pay the Plaintiff 4 li. in satisfaction of all Accounts and upon issue quod non se submiserunt Arbitrio it was found for the Defendant and upon motion in arrest of Iudgment it was agréed Where Arbitrement is no plea in Debt it is no plea in an Assumpsit upon the Debt that though Debt it self doth not lie in Arbitrament yet that and other Controversies doth 10 H. 7. 4. 4 H. 6. 27. But it was likewise agrréed that where Arbitrament is no plea in Debt it is no plea in an Assumpsit upon the Debt 2. Where it does not reach the thing demanded It was resolved that the Arbitrament did not reach the thing demanded for that was only of all Accounts and this is a duty upon the Account and so the Defendant could have no Iudgment then it was moved to have a Repleader Repleader denied but denied by Roll being then sole present Hil. 22 Car. Banco Regis Powel versus Waterhouse
Action because they imply an act done And Roll said that where one said Where is that long lock't shagg-hair'd murdering Rogue And a stranger asked him who do you mean He said Greene of Fauseet the words were judged actionable so he said where one said Bring home the Cushion you stole the words were adjudged actionable But the Iudgment was stayed for further advice Dent versus Scott Trin. 22 Car. Rot. 1151. IN an Action of the Case upon an Indebitatus Assumpsit for Wares it was found by special Verdict Acc'on sur Case that the Wares were sold to the Defendants Wife for convenient Apparel which she wore and if c. And the Opinion of the Court was clear for the Plaintiff for the Wife may charge the Husband for Necessaries as Apparel Dyet and Lodging in case that the Husband doth not provide them for her But if the Husband allow a stipend to the Wife for these things and it be paid her then they held she could not charge him And Roll said that this was endeavoured to be proved at the trial and because it could not he would have had the Iury found generally for the Plaintiff And Bacon said that he and the other Iudges have lately certified the Lords in Parliament accordingly but for a flaw in the Declaration which was in considerat ' quod venderet deliberaret and no averment of any sale or delivery Iudgment was given against the Plaintiff because the Declaration was insufficient and so entered Note also that the promise in this Case is laid to be made by the Husband and the sale and delivery made to him but then it must be deliberasset for if it were in consideration quod venderet deliberaret to him then it may be questioned whether a Sale and Delivery to the Wife would make good the averment Dunsh versus Smith Hil. 23 Car. Rot. 37. IN an Action of Debt Debt brought by an Executor for the arrears of a Rent-charge upon the Statute of 32 H. 8. The Plaintiff declares that the Defendant in the life of the Testator did enter into the Land out of which the Rent was issuing and occupied it and took the profits thereof by the space of five years and demands the arrears of the Rent for the time And after a Verdict for the Plaintiff Mainard moved that the Action will not lye for the arrears against the Occupiers for the Statute gives it against the Tenants of the Land To which Hale answered That at the Common Law the Action lay against him that took the profits of the Land and against the Husband that was seized in right of his Wife C. 4. f. 49. 2. That this Action is given in lieu of a Distress and the Beasts of the Occupiers were chargeable to the Distress 3. That it would be convenient that the Plaintiff should be compelled to inquire out in whom the Estate was of right But Iudgment was stayed And Roll doubte◠of the Case but inclined against the Plaintiff Pasc 24 Car. B. R. Harvy versus Thorne Pasc 24 Car. Rot. 472. IN an Action upon the Case Case against an Executor the Plaintiff declares that upon a treaty of a Marriage it was agréed betwéen the Plaintiff and the Testator that he should pay to the Plaintiff 100 li. and whilst that should be unpaid he should pay the Plaintiff 10 li. per Annum which Agréement was made Anno 1618. And the Action was brought for all the arrears by the space of 28 years The Defendant pleaded the Statute of Limitations whereupon the Plaintiff demurred And upon the motion of Hale who advised the Attorney to bring the Action for all the arrears that it appeared that all could not be barred by the Statute Iudgment was given for the Plaintiff no Counsel being retained in the Cause for the Defendant Loder versus Hampshire IN Debt Debt upon a singel Bill of 50 li. the Defendant after Imparlance pleaded That after the last continuance the Defendant had paid the Plaintiff 5 li. parcel of the 50 li. and demanded Iudgment of the Bill Whereupon the Plaintiff demurred and because the Defendant did not alledge that he had an Acquittance which he ought to produce At the motion of Earle Iudgment was given against the Defendant that he should answer over c. C. 5 E. 4. 139. a. Dod versus Robinson Trin. 23 Car. Rot. SLander Slander The Plaintiff declares that the last of March 13 Car. he was Instituted and Inducted into a Parsonage in Ireland and executed the Office of a Pastor in that Church by the space of four years after and the Defendant said of him He was a Drunkard a Whoremaster a common Swearer and a common Lyar and hath preached false Doctrine and deserves to be degraded And after a Verdict for the Plaintiff it was moved by Hale in arrest of Iudgment 1. That the words in themselves are not actionable because the Crimes charged impute no Civil or Temporal damage to the Plaintiff for which he may have Action But the Opinion of the Court was clear for the Plaintiff in that point for that the matters charged are good cause to have him degraded whereby he should lose his Fréehold which is a temporal damage to him Then it was objected That he did not lay that he was Parson when the words were spoken To which it was answered by the Court That it should be intended he continued Parson because he had a Fréehold in the Parsonage during his life But it was further urged That inasmuch as he hath laid a special time during which he exercised the Office of a Pastor it shall not be intended that he continued so longer then himself hath laid it And of this the Court doubted but inclined for the Plaintiff Morefield Webb Pasc 23 Car. Rot. 51. Acc'on fur Case IN a Writ of Error upon Iudgment in the Palace Court at Westminster In an Action upon the Case upon a Promise and a Verdict for the Plaintiff It was moved for Error that the Habeas Corpora Jurator̄ was not returned served but that there was a Pannel of the Names of the Iurors annexed to it which Case is aided by the Statute of 21 Jac. which aids when there is not any return upon the Writs of Ven. Fac. Hab. Corpora et Distring so as a Panel of the Names of the Iurors be returned and annexed to the said Writs And two Objections were made 1. That this Statute extends only to such by Writ and in this Court it is by Precept and not by Writ 2. It appears that this Court was erected by Letters Patents 6 Car. which was after the Statute But it was resolved 1. That it is within the Intention of the Statute which doth provide amendment in any Action Suit Plaint Bill or Demand And Roll said that it is questionable if this Statute extends to the Grand Sessions in Wales and Iustice Jones was angry that it was made a Question
affirmed Trin. 24 Car. B. R. Freeborne versus Pincras Hil. 23 Car. Rot. 1375. Acc'on sur Case IN an Action upon the Case the Plaintiff declares that the Defendant in consideration c. did promise to joyn with him in a Surrender of certain Copyhold Lands for a Sale to be made of them to any person and avers that he had procured 2 Copyholders such a day to be present at a certain place within the Mannor and that the Plaintiff was then and there ready to have joyned with the Defendant in a Surrender of the Lands for a Sale to be made to one J. S. and that the 2 Copyholders were then and there ready to have received the Surrender c. and that then and there he did request the Defendant to joyn with him in a Surrender into the hands of the two Copyholders to be presented by them in Court to the use of the said J. S. c. Secundum consuetudinem manerij praed ' à tempore quo c. usitat̄ quodque sursumredditio sic requisita facienda fuit pro venditione of the said Copyhold Lands pro quadam pecuniae summa per praed ' J. S. solvend ' And that the Defendant non junxit with the Plaintiff in the Surrender licet ad hoc faciend ' postea eodem die per praed ' querent̄ requisitus fuit c. And after a Verdict for the Plaintiff upon Non assumpsit pleaded upon motion in Arrest of Iudgment it was resolved by Roll that the Declaration was insufficient 1. For that the Plaintiff hath alledged that he was ready to joyn in a Surrender with the Defendant and that then and there he did require the Defendant to Surrender but hath not alledged that he did give notice to the Defendant that he was ready to joyn with him and so it is no more then a bare request to the Defendant to make a Surrender which is not sufficient for that the Plaintiff was to joyn with him in it 2. The Surrender was to be for Sale to be made to J. S. and the Plaintiff hath not any way intimated to the Defendant that the intention of the Surrender was such And Roll said that the notice ought to be particular of the agréement and sum for which it was to be sold 3. The Promise is general to joyn in a Surrender and the Request is to Surrender into the hands of two Customary Tenants which being a particular way of Surrender grounded upon a particular custome is not within the intention of a promise generally to Surrender which is to be taken according to the common way of Surrender and so he said it was resolved Pasc 9 Car. in this Court betwéen Sims and the Lady Smith And so if a man be bound to another to make such assurance of Lands as the Obligée shall devise it is not sufficient for him to devise a Fine and to take out a Dedimus c. upon it and require his Conusants in that for this is but a special way of taking the Conusans and so he said it had béen ruled But if there were a Proviso that he should not go above five miles from his House then if his House be above five miles from Westminster he is bound to make his Conusans upon the Dedimus and that he said hath béen the difference 4. He hath not positively alledged that there was a custome in the Mannor to Surrender into the hands of two Copyholders which he ought to have done but hath too superficially pleaded And Iudgment was given against the Plaintiff Trin. 24 Car. B. R. Read versus Palmer Pasc 24 Car. Rot. 326. IN an Action upon the Case the Plaintiff declares Acc'on sur Case that whereas he had brought an Action of Battery against the Defendant and procéeded to a Trial at Guildhall London where a Iury was drawn by consent and the Plaintiff and Defendant submitted the Cause to the award of two of the Iurors infra unum mensem proxime sequent̄ fiend ' and that postea eodem die in considerat̄ that the Plaintiff did promise to the Defendant to performe omnia et singula quae praed'arbitratores ex parte ipsius querent ' de et super praemissis faciend'et observand'ordinarent et adjudicarent And here the Plaintiffs Attorney after Issue joyned without notice inserted infra unum mensem the Defendant promised in the same manner and the same Clause there inserted by the Plaintiffs Attorney And after Verdict upon Non assumpsit pleaded this amendment after issue joyned without notice was moved in arrest of Iudgment wherein the question was Whether this amendment were in a point material for it was agréed that if it were not in a material part of the Declaration then it could not prejudice the Plaintiff And Twisden urged that it was not in a material part 1. Because every submission to an Award implies a Promise to perform it and so the promise laid is no more then was implyed in the submission 2. The Promise is to perform what the Arbitrators should award which must be taken with relation to the submission which was to an award to be made within a month And so the words infra unum mensem are but an expression of that which would have béen implyed without them But it was resolved by Roll upon good deliberation that the amendment was in a material part For 1. Though a submission to an Award be good Evidence to induce a Iury to find a Promise to perform it yet in Iudgment of Law the Promise is collateral to the submission and not implyed in it 2. Though the Promise be collateral to the submission yet if it had béen laid to have béen made at the same time with it then it should have béen intended adequate and proportionable to it but being laid to be made at another time although it be the same day it cannot be so intended because it is not immemediately applyed to the submission but it might have inlarged or abridged the time limited thereby And he cited a Case betwéen Hodge and Vavasour 14 Jac. where the Plaintiff declared that the Defendant such a day became indebted to him for Wares and in consideration thereof postea eodem die promised to pay it And this was ruled good not as a promise in Law but as an actual promise raised upon a consideration continuing which he cited to shew that a little distance of time though the same day alters the intendment of Law and a new Trial was awarded Trin. 24 Car. B. R. Chace versus Gold Pasc 24 Car. Rot. 219. IN an Action of Debt upon a Bond of 200 li. with Condition for the payment of 104 li. at a day certaine Release made by the Defendant and two others joyntly and severally The Defendant upon Oyer and Entry of the Bond and Condition in haec verba pleaded that the Plaintiff did release praed ' scriptum obligatorium by the name of an Obligation in 200
brought in the Exchequer but I think it was for delay only Term Mich. 24 Car. Banco Regis Udal versus Udal IN a Trover and Conversion of 400 Load of Timber Vpon not guilty pleaded the Iury found by special Verdict that Sir William Udal being seized in fée of the Mannor of Horton whereof the Land where the Timber grew was parcel did Covenant by Indenture to levy a Fine to the use of himself in Tail the Remainder to such persons and for such Estates as he should limit by Indenture and for want of such limitation the remainder to the Defendant for life the remainder to his eldest Son in Tail and to his tenth Son and for want of such Issue the remainder to W. U. for life the remainder to his eldest Son in Tail c. and so to his tenth Son the remainder to the right heirs of Sir William with a Proviso that upon tender of 5 s. c. he might revoke those uses and limit others and levyed a fine accordingly And after by another Indenture reciting the uses of the first and the Proviso in it made a new limitation to the use of himself in tail the remainder to the Defendant for life with like remainder ut supra to his Sons the remainder to W. U. for life with like remainders to his Sons the remainder to the Plaintiff in Tail c. according to his power and the clause in the said Indentures and dyed without Issue and the Defendant neither himself nor W. U. having any Son cut down the Timber and years after sold part of it and the Plaintiff seised the rest which the Defendant did take again from the Plaintiff and sold the same and if c. And the case being argued Trin. Pasch ult and this Term it was resolved by Bacon and Roll. 1. That if there be tenant for life the remainder for life and tenant for life cut down Timber trées he that hath the Inheritance may seise them although he cannot have an Action of waste during the life of him in remainder For 1. The particular tenant hath not the absolute property in the Trées but only a special Interest in them so long as they continue annexed to the Land And therefore a Termer cannot grant away his term excepting the trées but the exception is void for that he cannot have a distinct interest in them but only relative to the land And so it is resolved in Sanders Case Lib. 5. 12. f. and so Mainard said it was resolved 10 Car. in Whites case in the Court of Wards in case of lesseé for life but where a Lease for years was made without Impeachment of waste such an exception was adjudged good as he said in Sir Alan Piercy's Case and so Bacon said it was adjudged 9 Car. in Dame Billinglys Case Then the remainder for life betters not the interest of the tenant for life in the Trées but only is an impediment for the time to the bringing of an Action of waste and therefore after the death of him in remainder for life an Action will lye for waste done in his life time And so it is adjudged in Pagets Case Lib. 5. 76. g. and so Mainard said it was adjudged Mich. 14 E. 2. in a Case not Printed that where he in reversion upon an estate for life granted his reversion for life and the tenant for life made waste and then the grantée of the reversion dyed that an Action of waste would lye against the tenant for life which proves that the cutting down of the Trées by the Tenant was tortious 2. It was resolved that the mean remainders in contingency though of an estate inheritance alter not the case for an estate in contingency is no estate till the contingency happen And therefore it was agréed that the Plaintiff might have had an Action of waste in this Case had there not béen a remainder for life in esse notwithstanding the mean contingent remainders 3. It was resolved that a Trover and Conversion in this Case would lye for all the Timber trées though the Plaintiff never seized parcel of them for by the cutting down of them an absolute property was vested in the Plaintiff unless they had béen cut down for reparations and so imployed in convenient time And for this Bury and Heards Case was cited by the Court which commenced in this Court 20 Jac. and depended seven years where a stranger entred into Lands leased for life and cut down Timber trées and barked them and the lessor before seisure brought a Trover for the bark and had Iudgment to recover notwithstanding that the cutting down and barking was all at one time whereupon it was then objected that the distinct property of a chattle was never settled in the lessor and the book of 13 H. 7. 9. g. cited that Trespass vi armis doth not lye against lessée for years who cuts down Timber trées and sells them Per Curiam Which Case was then affirmed for good Law but there it was agréed That if lessée for years cuts down Timber trees and lets them lye and after carries them away so that the taking and carrying away be not as one continued act but that there be some time for the distinct property of a divided chattle to settle in the lessor that an Action of Trespass vi armis would lye in such case against the lessee And that in such case felony might be committed of them but not where they were taken and carried away at the same time Vide 3 In. 109. a. c. 4. 63. f. And it was resolved in that Case of Bury and Heard that although the lessee had a special Interest in the trees as for necessary reparations c. yet the Action would lye for the lessor for the Interest of the lessee was determined by the cutting down unless he had cause for necessary reparations which had there been yet might the lessor have his Action but if the lessee in such case had brought his Action and recovered this would have been a good bar against the lessor but in the principal case there was years distance between the cutting down and the sale And also the Defendant by the sale made himself an absolute wrong doer for though there had been cause for reparation yet the Trees being cut down and sold though other Trees had been bought with the money and imployed in reparations this would not have excused him in an Action of Waste And an exception was taken by Latch to the execution of the power of Sir William upon the limitation of the uses by the last Indenture for that it was made with relation to the Proviso And five shillings were not tendered which was the Condition of the power thereby reserved and then Sir William being tenant in Tail the reversion to himself in fee by the first Indenture and dying without Issue the Defendant being his heir was seised in fee but the exception was clearly disallowed both for
that he had a double power by the first Indenture the one to limit other uses to such persons and for such estates as he pleased the other to revoke the uses limited by the first Indenture and to limit new uses And when he limits uses generally which cannot stand by the power reserved by the Proviso for lack of tender the Law will refer the limitation to the power he had to limit other uses c. And Sir Edw. Clears Case Lib. 6. 18. was cited And secondly for that the second limitation is expresly made according to his power which refers to that power which he persued And it was touched whether the uses limited according to that power were revocable by the Proviso And Mainard said it might be a question And Iudgment was given for the Plaintiff Mainard for the Plaintiff and Latch for the Defendant Quaere in the case cited if a lessor should bring Trover against a stranger for Trees cut by him if this should be a bar to an Action of Waste for the Trees And if there were cause for reparations what remedy hath the lessee for his loss for it should seem that he will be liable to an Action of Waste for not repairing although the lessor recovers for the Trees Sir Anthony Ashly Cooper versus Saint John Trin. 24 Car. Rot. 267. Trin. 1649. between the same Plaintiff and Webb Defendant entred Hill 24 Car. Rot. 426. the same declaration was adjudged good upon a demurrer IN Trespass the Plaintiff declared quod cum he was seised of two Closes of pasture which were inclosed by him and whereas there was a Common next adjoyning to them the Defendant decem perticatas sepium claus ' praedictae pasturae prostravit sic prostratas for such a time custodivit per quod the beasts depasturing in the Common came into the Closes and eat the grass there ad dam ' c. the Defendant pleaded non cul'infra 6 annos And after a Verdict for the Plaintiff Mainard moved in arrest of Iudgment that it ought to have been vi armis because the Trespass is laid to be done in his own soil and said that in false imprisonment per quod he was compelled to pay 5 l. in a Case about seven or eight years since N. B. 93. d. Iudgment was arrested for want of vi armis But the exception was dissallowed and Iudgment given for the Plaintiff without argument for the conclusion per quod and the commencement quod cum shew it to be an Action of the Case and the causa causans of the Damages may be laid vi armis or without it Lib. 950. f. Vide 13 H. 7. 26. f. which is no Law Quaere if in Case of false imprisonment there be not a difference between a conclusion per quod quousque c. Mich. 24 Car. Banco Regis Kynaston Spencer versus Jones Mich. 23 Car. Rot. 589. IN Debt upon a bond of 2000 l. bearing date 9 Martii 22 Car. with Condition to stand to the award of J. S. and J. N. indifferently chosen Arbitrators of all matters and controversies betwéen the parties Debt upon Award so that they made an award of the premises before the Feast of Easter next ensuing upon nullum fecerunt arbitrium ante festum Paschae pleaded by the Defendant the Plaintiffs replied that before the Feast of Easter viz. the 15 day of April following the Arbitrators did make their award that the Defendant should pay to the Plaintiffs 1200 l. at four payments viz. on the 16 of October and the 16 of April and that on the fourth of May he should enter into four bonds for the payment and should then pay to the Plaintiffs 30 l. towards their costs and charges expended and that all Actions and controversies betwéen the Plaintiffs and Defendant should cease and determine and that they should seal and deliver to each other general Releases of all controversies suits and demands until the eighth day of March and time and place appointed for the doing of this And Assigned breach in not paying the 30 l. upon the fourth of May The Defendant rejoyned that the Arbitrators nullum fecerunt tale arbitrium modo forma pro ut de hoc c. whereupon Issue was Ioyned and by special Verdict it was found that the sixth of Febr. 22 Car. the parties agréed to submit all controversies betwéen them to Arbitrement and that 22 Febr. 22. Car. the Plaintiff became bound to the Defendant to stand to the award of the Arbitrators according to the condition ut supra and that 9 Mart. 22. Car. the Defendant became bound ut supra and that praedict ' 15 die Aprilis 23 Car. the Arbitrators made their award reciting that the Plaintiffs and Defendant became bound the 9 of March in 2000 l. a piece to perform their award and that the Defendant had received of the Plaintiff 1000 l. an 1641. which with Interest amounts to 1460 l. and upwards and that the Plaintiff had béen at Charges for the recovery thereof and thereby awarded ut supra And upon this Verdict two questions were made 1. Whether upon this Issue the submission be in question 2. Admitting it be whether the award upon the submission found be a good award Et Term. Pasch ult the Case was argued by Philips for the Plaintiff and Latch for the Defendant And this Term by Hale for the Plaintiff and Mainard for the Defendant And it was resolved by Bacon and Roll. 1. That upon this Issue the Iury cannot enquire of the submission for that is admitted by the plea. And therefore the Defendant could not have set this matter forth in the rejoynder thereby to have made good his bar that the Arbitrators made no award for the award in it self is a good award And it would have been a departure in him to have alledged a matter extrinsecal to the award which should prove it to be void and for this Lincy and Ashtons Case 12 Car. in this Court was cited by Roll where in debt upon a bond to perform an award upon nullum fecerunt arbitrium pleaded the Plaintiff set forth an award that the Defendant should pay 10 l. to the Plaintiff at the house of a stranger and Assigned breach in non-payment the Defendant rejoyned that he could not come to the strangers house without being a Trespasser and upon demurrer it was adjudged for the Plaintiff 39 H. 6. 6. h. Lib. 5. 103. for the award set forth by the Plaintiff was good and the matter alledged by the Defendant in avoidance of it was a departure from his bar And therefore he ought to have alledged the whole matter in his bar And so must he have done in this Case if he would have taken advantage of the submission and he said that 14 Car. Iudgment was affirmed in the Exchequer and both points resolved accordingly 2. Against the award it was objected that thereby the bond made by the
Title And both the Iudges denied that the Chancery could proceed upon the Inquisition now that the same was sent hither upon the Traverse but that the Iudgment in this Court would utterly subvert the Inquisition And therefore Iudgment was given quod manus Domini Regis amoveantur Shalmer versus Slingsby Hil. 22 Car. Rot. 1036. IN an Action of Debt upon a Bond the Defendant pleaded Debt That the Bond was made in another County than where it is alledged in the Declaration and prayed that the Attorney might be examined thereupon by force of the Statute of 6 R. 2. cap. 2. And the Plaintiff demurred as if it had been a plea in bar to the Action And the Defendant joyned in demurrer and concluded quod ab actione praecludatur And it was resolved that the plea was naught and not warranted by the Statute which provides only that the Original shall not be laid in one County and the Declaration upon a Bond made in another County and if so the Writ shall abate but this course of pleading hath been alwaies disallowed Vide 3 H. 6. 35. 2. Because the demurrer was joined as to the Action therefore Iudgment was given quod recuperet c. Wright versus Paul Pindar Pasc 22 Car. Rot. 440. IN a Trover Trover and Conversion brought by an Administrator upon not guilty pleaded the Defendant upon the evidence confesses that he did convert them to his own use but further saith that the Intestate was indebted to the King and that 18. May 14 Car. it was found by Inquisition that he died possessed of the Goods in question which being returned a venditioni exponas was awarded to the Sheriff who by virtue thereof sold them to the Defendant And to prove this the Defendant shewed the Warrant of the Treasurer and the Office-Book in the Exchequer and the Entry of the Inquisition and the venditioni exponas in the Clerk's Book to which the Plaintiff saith that the matter alledged is not sufficient to prove the Defendant not guilty and that there was no such Writ of venditioni exponas And the Defendant saith that the matter is sufficient and that there was such a Writ And it was resolved that he that demurs upon the Evidence ought to confess the whole matter of fact to be true and not refer that to the judgment of the Court. And if the matter of fact be uncertainly alledged or that it be doubtfull whether it be true or no because offered to be proved only by presumptions and probabilities and the other party will demur thereupon he that alledges this matter cannot join in Demurrer with him but ought to pray the judgment of the Court that he may not be admitted to his Demurer unless he will confess the matter of fact to be true And for that the Defendant did not so in this case both parties have misbehaved themselves and the Court cannot proceed to Iudgment But it was clearly agreed that upon Evidence the Court for reasonable cause at their discretion may permit any matter to be shewn to prove a Record Com. 411. b. And the opinion of the Court was that an alias Venire facias should be awarded and not a Venire de novo because no Verdict was given Trin. 23 Car. Banco Regis King versus Somerland Pasc 23 Car. Rot. 140. IN an Action of Debt Debt for Rent the Plaintiff declares upon a Lease for years made by a stranger who bargained and sold the Reversion to the Plaintiff per indenturam debito modo irrotulat ' in curia Cancellariae and after a Verdict for the Plaintiff upon nil debet pleaded it was moved in arrest of Iudgment that he had not alledged the inrolment to be within six months nor secundum formam Statuti And though it were said to be debito modo that would not help because it might be so at the Common Law and the Verdict could not make the Declaration good for want of a convenient certainty for the foundation and therefore upon great deliberation Iudgment was given against the Plaintiff Coleman versus Painter Trin. 23 Car. Rot. IN an Action of Debt Debt upon a Bond with condition to perform Covenants one of which was that the Plaintiff should not be interrupted in his possession of certain Lands by any person that had lawfull Title and particularly that he should not be interrupted by one Thomas Anthony by virtue of any such Title upon performance of Covenants pleaded the Plaintiff replies that 1. Novemb. 20 Car. the Defendant made a Lease for years to the Plaintiff of the Lands mentioned in the Déed and that the 3. of the same month the Plaintiff entred and that before this time viz. 17. Augusti 20 Car. the Defendant made a Lease to the said Tho. Anthony for a term of years yet to come who 20. Aug. 20 Car. entred into the Land c. the Defendant pleaded that the said Lease made to T. A. was with condition of re-entry for non-payment of Rent and that before the Lease made to the Plaintiff the Rent was behind legitime demandat secundum formam indenturae And upon non-payment he re-entred and made a Lease to the Plaintiff And upon a general demurer it was resolved that the Demand was insufficiently alledged for he ought to set forth certainly when and where it was made that it might appear to the Court to be legal but for the flaw in the Plaintiff's replication because he alledged his Entry after the Lease made to T. A. so that it doth not appear that he was interrupted by him the opinion of the Court was against the Plaintiff but the next Term by leave of the Court he discontinued his Action Brown versus Evering Hil. 21 Car. Rot. 354. IN an Action of Debt Debt for Rent after a Verdict and Iudgment for the Plaintiff in the Common Pleas upon a Writ of Error brought and Diminution alledged it appeared that the Issue was joyned Pasc 21 Car. And the Venire facias certified to be in placito praedicto inter partes praedictas bore teste Pasc 20 Car. And this was moved for Error but it was adjudged to be holpen by the Statute of 8 El. cap. 14. as if there had been no such Writ for it is impossible that this should be the Writ in that Action Long versus Bennet IN an Assumpsit Assumpsit the Plaintiff declares That in consideration that he had sold to the Defendant unam acram ligni he promised to pay him 8 li. And after Verdict for him upon non Assumpsit it was moved that the Declaration was uncertain because it doth not appear whether the Soil it self or the Wood only were sold but after much debate the Plaintiff had his Iudgment Vide 17 E. 4. 1. d. Frier versus Prentice Pasc 23 Car. Rot. 416. IN an Assumpsit Assumpsit the Plaintiff declares That the Defendant in consideration that the Plaintiff would permit J. S. to enjoy